At Its 25th Anniversary, IRCA's Legacy Lives On

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At Its 25th Anniversary, IRCA's Legacy Lives On

November 16, 2011

Policy Beat

By

Muzaffar Chishti, Doris Meissner, Claire Bergeron

President Ronald Reagan signed the Immigration Reform and Control Act (IRCA) into law on November 6, 1986.

On November 6, 1986, President Ronald Reagan signed into law the Immigration Reform and Control Act (IRCA). The law, which is best known for connecting strengthened immigration enforcement with legalization provisions for unauthorized immigrants, marked a significant milestone in immigration policy.

IRCA ushered in the most far-reaching changes in immigration law since the passage of the 1965 Immigration and Nationality Act. The primary goal of the sponsors and proponents of IRCA was to increase border security and establish penalties for employers who hired unauthorized immigrants. Employer sanctions represented a fundamental policy shift from a historic laissez-faire attitude toward employer responsibility in fueling illegal immigration.

In addition, the law held out the promise of legal status and eventual citizenship to millions of unauthorized immigrants, marking the first large-scale legalization program in U.S. immigration history.

Though IRCA has received mixed reviews over the years, the law’s full impact — and its lessons — continue to be evident 25 years later. The law’s provisions on immigration enforcement and employer verification remain very much in effect and have served as the building blocks for much of the nation’s current immigration enforcement regime and debates. At the same time, proponents of a new comprehensive immigration reform that would once again combine immigration enforcement and legalization provisions have looked to the successes and failures of IRCA when crafting immigration proposals.

History of IRCA: A Long Road to Passage in 1986

While the 99th Congress and President Reagan were responsible for the passage of IRCA, executive-branch support for a very similar legislative framework actually began with President Jimmy Carter. In August 1977, Carter submitted a plan asking Congress to pass legislation that would add 2,000 new border patrol agents to the U.S.-Mexico border, impose civil and criminal penalties on employers who hired unauthorized immigrants, and allow unauthorized immigrants to legalize their status.

Congress refused to take up the legislation. However, Senator Edward Kennedy (D-MA) was able to steer passage of a bill in October 1978 to establish a Select Commission on Immigration and Refugee Policy (SCIRP), a high-level bipartisan commission chaired by Reverend Theodore Hesburgh. In February 1981, the Hesburgh Commission made a series of recommendations including the enactment of penalties on employers who hired unauthorized immigrants, a one-time amnesty for unauthorized immigrants, and a modest increase in legal immigration.

Soon after, President Reagan announced that he would back an immigration compromise modeled on the Hesburgh Commission recommendations. In March 1982, Senator Alan Simpson (R-WY) and Representative Romano Mazzoli (D-KY), who had both been Commission members, introduced the first versions of IRCA (also known as the “Simpson-Mazzoli Act”) in Congress.

The introduction of IRCA proved to be but a first step in a long and arduous journey toward the bill's final passage. In the 97th Congress, the IRCA bill died in the House of Representatives in 1982. After being introduced in the 98th Congress, the bill died again in 1984 amid disagreement between House and Senate negotiators.

Opposition to the legislation came from a spectrum of powerful interest groups. Immigrant advocates argued that IRCA would lead to increased discrimination against Hispanic workers. Agricultural groups claimed that the bill's passage would deplete their labor force. Employers resisted the burdens of the new hiring requirements, and labor unions were opposed to a guest worker program in the bill that they believed would undercut U.S. workers and undermine labor protections. Privacy advocates resisted identification requirements that might lead to a national ID or government-wide databases.

In the fall of 1986, when the demise of the bill had been announced yet again, lawmakers revived it with a set of carefully crafted compromise measures that ultimately enabled the bill to pass. These included the implementation of a new guest worker program for agricultural workers combined with a special legalization program that created a path to U.S. citizenship for certain agricultural workers already in the United States, as well as aid to the states to assist with the costs associated with immigrant integration.

The revival of the bill was viewed as something of a legislative miracle by many members of Congress. Speaking to reporters about the bill's passage, Representative Dan Lungren (R-CA) told the media "It's been a rocky road to get here. We thought we had a corpse. But on the way to the morgue, a toe began to twitch." With the new amendments, Congress passed IRCA during the final hours of the 99th Congress. President Reagan signed the bill into law less than a month later.

IRCA Provisions: The Three-Legged Stool — and a Little More

IRCA is generally known for three key components, which the bill’s sponsors fondly referred to as a “three-legged stool.” The three legs of the stool were: tougher border enforcement, penalties for employers who hired unauthorized immigrants, and legalization for unauthorized immigrants who had been in the U.S. for five years or more. Supporters of the bill saw all three components as being critically important to solving the problem of illegal immigration.

IRCA’s proponents stressed that increasing border control and immigration enforcement had to be the first leg of the new immigration enforcement regime. To accomplish it, the law established new criminal penalties for fraudulent use of identity documents and for knowingly bringing in, harboring, or transporting unauthorized immigrants. It also increased appropriations for the Immigration and Naturalization Service (INS), which handled immigration enforcement, and for the Executive Office of Immigration Review (EOIR), which adjudicated deportation cases. In addition, the law called on the INS to increase the number of Border Patrol agents by 50 percent from its 1986 level.

The second component of IRCA was to establish, for the first time, federal civil and criminal penalties for employers who knowingly hired unauthorized immigrants. Through a new employment verification regime, the I-9 process, employers were required to verify and document the lawful status and authorization to work of all new hires, including U.S. citizens.

In addition, to ensure that “foreign-looking” workers were not subject to discrimination, IRCA made it unlawful for an employer to discriminate against a job applicant based on his or her national origin or citizenship status. The law created the office of Special Counsel for Immigration Related Unfair Employment Practices in the Department of Justice, which investigates and prosecutes claims of discrimination.

The bill’s legalization provisions — the third leg — were presented as a one-time measure that would “wipe the slate clean” of the problem of illegal immigration, given strengthened border and new employer enforcement.

Often referred to as amnesty, the legalization allowed unauthorized immigrants who had been continuously present in the United States since January 1, 1982 to apply for temporary, and later permanent, legal status if they met certain conditions. Such applicants could eventually qualify for U.S. citizenship. A separate program allowed workers who had performed seasonal agricultural work during the 12-month period ending May 1, 1986 to legalize their status. In signing the bill, President Reagan emphasized that it would enable unauthorized immigrants to come out of the shadows and “step into the sunlight.”

Beyond the three legs of IRCA, the 1986 law contained a number of less well-known provisions, including:

The first visa waiver pilot program, which allowed nationals from certain countries to enter the United States visa-free for up to 90 days for either business or tourism purposes. Thirty-six countries now participate in the U.S. Visa Waiver Program.

The H-2A guest worker program, through which agricultural employers may sponsor foreign-born temporary guest workers for up to three years.

A first-time federal reimbursement to states for the costs of incarcerating certain unauthorized immigrants who had committed crimes.

A requirement that the INS create a system for states to use in order to verify the immigration status of recipients of public benefits. The system, known as the Systematic Alien Verification for Entitlements Program (SAVE) became an early prototype for the current E-Verify program, which confirms work authorization for employment purposes.

An update of the registry date for unauthorized immigrants eligible to apply for legal status based on the length of time they had lived in the United States, from June 30, 1948 to January 1, 1972.

IRCA also contained at least one provision that the executive branch never implemented. The law authorized the Secretary of Labor and the Secretary of Agriculture to jointly determine between fiscal years (FY) 1990 and 1993 whether the admission of "replenishment" agricultural workers was justified due to shortages in agricultural labor. No such determination was made, no replenishment agricultural workers were admitted, and the program lapsed in 1993.

IRCA's Legacy 25 Years Later

Employer Sanctions

The legacy of IRCA’s employer verification provisions is a mixed one. The employer sanctions scheme marked a first attempt to use a workplace tool to regulate unauthorized immigration. However, the I-9 system allowed for a variety of documents to be used to meet the law’s requirements. That led to the widespread use and proliferation of fraudulent documents and deeply compromised the law’s implementation and enforcement purpose. Equally important, in the immediate aftermath of IRCA, the federal government was unsuccessful in enforcing employer sanctions vigorously and establishing it as a high enforcement priority.

By 1996 another commission, chaired by Representative Barbara Jordan (D-TX), had been created in the 1990 amendments to the INA. The Jordan Commission made recommendations for beefing up the employer sanctions regime, which Congress took up in the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). Congress called on the INS to create three pilot programs for testing alternate ways to electronically verify the work authorization of new hires. The most successful of the pilots led to the current E-Verify system. It uses immigration and social security databases to determine whether new hires are authorized to work.

While an increasing number of U.S. employers use E-Verify, an estimated 97 percent still rely on IRCA’s paper-based I-9 system to verify legal status. This percentage will inevitably decrease, especially in light of the recent Supreme Court decision in Chamber of Commerce v. Whiting upholding state laws mandating the use of E-Verify by employers. In addition, Whiting found that, although IRCA expressly prohibited states from having their own employer sanctions laws, they were free to do so through state licensing laws under a narrow exception provided by IRCA. Thus, 25 years later, state engagement in regulating the hiring of unauthorized workers represents a new dimension of the immigration landscape that has grown dramatically in the last five years.

In addition, despite the law’s prohibition on national origins and citizenship discrimination, three congressionally mandated reports from the Government Accountability Office found that, in the aftermath of IRCA, such discrimination was widespread. The Office of Special Counsel continues to prosecute discrimination cases.

Critics of the employer sanctions regime had also cautioned that it would result in the erosion of certain well-established worker rights and protections. In a 2004 Supreme Court decision, some of those concerns became realized. In Hoffman Plastic Compounds, Inc. v National Labor Relations Board, the court held that in light of IRCA's employer sanctions provisions, unauthorized workers were ineligible to receive back pay awards even when they were unlawfully terminated under the nation's labor laws.

The Legalization Program

IRCA had an immediate and dramatic effect on the lives of millions of unauthorized immigrants who legalized their status under the law. Approximately 1.6 million individuals legalized their status through the general amnesty provisions, and an additional 1.1 million legalized through the provisions for special agricultural workers (SAW). In addition, the new permanent residents and U.S. citizens were able to sponsor qualifying relatives through normal immigration channels.

The legalization of IRCA beneficiaries and the admission of their sponsored relatives greatly contributed to the historic rise in family-based immigration that occurred in the 1990s. In particular, the law enabled Mexican nationals, who constituted roughly 70 percent of IRCA beneficiaries, to gain a solid foothold in the U.S. legal immigration system.

The legalization provisions of IRCA received their share of criticism. Because of the law’s five-year qualifying cut-off date, some members of unauthorized families gained lawful status while others did not. Congress partially remedied this situation in 1990, when it enacted a law granting temporary legal status to such family members while they waited for their IRCA-qualifying relatives to sponsor them for lawful permanent residence.

While the general legalization program was largely viewed as a success, there were allegations of considerable fraud in the SAW program. In addition, the regulations governing the general amnesty program led to confusion over who was eligible to apply for legal status. This confusion spawned a series of lawsuits against the U.S. government that lasted for over two decades.

Many analysts also believe that IRCA, ironically, sowed the seeds for increased future illegal immigration. The five-year gap between the qualifying date and the date of the law’s enactment left many settled immigrants in the country without status, and critics charged that the law increased the incentive for people to migrate in hopes of future amnesties. The law also led directly to longer queues for family-sponsored immigrants to gain permanent resident status, as IRCA beneficiaries rushed to petition for eligible family members through the normal immigration process. The longer waits — some as long as ten years — may have spurred increased illegal immigration.

In retrospect, IRCA’s greatest failing was that it did not anticipate the dynamic nature of the country’s immigration need. Thus, the law provided no legal avenues for increased employment-based immigration, especially for low-skilled workers. This failing, combined with a high demand for low-skilled workers in a growing economy, led to a surge in the unauthorized population in the 1990s and in the early 2000s. By 2007, the U.S. unauthorized population had reached a new peak of 12 million people.

Border Security and Immigration Enforcement

The immigration enforcement and border security portion of IRCA also had a profound and continuing impact on the immigration system. The increased staffing and funding for immigration enforcement first mandated by IRCA has grown dramatically, although increases did not begin in earnest until almost ten years after IRCA was enacted. By January of FY 2011, there were 20,700 border patrol agents (up from 3,600 in 1986) and appropriations for the three current U.S. immigration agencies that succeeded INS totaled more than $17.2 billion (compared with $575 million for INS funding in 1986).

IRCA’s criminal provisions on the use of fraudulent identification documents and knowingly bringing in, harboring, and transporting unauthorized immigrants are vigorously enforced today. According to the Transactional Records Access Clearinghouse (TRAC), during the first 11 months of FY 2011, federal prosecutors charged 2,599 individuals with bringing in/harboring/transporting unauthorized immigrants, and an additional 1,099 with document fraud. The two charges represented the third and fourth most common immigration criminal charges filed during that time.

Integration of Immigrants

IRCA provided states with State Legalization Impact Assistance Grants (SLIAGs) to help defray the costs of providing health care, public assistance, and English language and civics classes to the newly legalized population. The $4 billion grants spent over four years constituted a big investment, exceeding the amount that the federal government spent on welfare at that time. The grants were also the first time outside the context of refugee resettlement that the federal government provided large-scale reimbursement payments to states for costs associated with immigrant integration.

The grants thus represented a major opportunity to frame and develop an integration program and build institutional capacity at the state level. However, most analysts do not credit SLIAG spending with deepening states’ capacity for immigrant integration or to more purposeful or effective immigrant integration policies. Indeed, the lack of a robust or effective system for reimbursing states for the costs of immigrant integration may be partly responsible for some of the current anti-immigrant backlash in some states.

Growth of a New Field

IRCA’s passage also sparked new energy and growth at many levels of civil society sympathetic to immigration. Because sponsors of the law were concerned that potential beneficiaries would fear applying for legal status directly with the INS, the federal government selected local groups around the country to act as “qualified designated entities” to help legalization beneficiaries file their applications. Many of those organizations continued to provide services to immigrants long after the legalization program ended. This was also true of many organizations that geared up to provide English language training to those who legalized.

A new set of state and local immigration coalitions also emerged after IRCA to advocate for and support immigrant causes, and major efforts to coordinate the work of immigrant defense organizations were launched and sustained at the national level. The immigration bar also experienced a dramatic spike in membership after the passage of IRCA. Most importantly, major philanthropies expanded their reach to support immigrant advocacy and services, resulting in new infusions of foundation funding to support what was then a budding (and now vibrant) immigration movement.

Politics

Perhaps the most significant broad lesson from IRCA is the particular political environment and culture in which the law passed. Despite its many near-death moments, the law was the product of strong bipartisan support in the two houses of Congress at a time of divided government, with a Republican president, GOP Senate, and Democratic House. Senior leaders on both sides of the aisle and in both houses of Congress became its champions, and the president was able to persuade reluctant legislators in both parties to vote for it. The notable absence of these factors today may be one reason why proponents of a new “comprehensive immigration reform” bill have found the atmosphere for such a bill’s passage far less promising during the 112th Congress than it was during the 99th.